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2024 DIGILAW 21 (ORI)

Suresh Dandsena v. State of Odisha

2024-03-22

D.DASH, V.NARASINGH

body2024
JUDGMENT D. Dash, J. The Appellant by filing this Appeal from inside the jail has challenged the judgment of conviction and order of sentence dated 7th July 2005 passed by the IInd Adhoc Additional Sessions Judge, Sundargarh in Sessions Trial No.200/27 of 2004-2005 arising out of G.R. Case No.559 of 2003 corresponding to Lephripara P.S. Case No.64 of 2003 of the Court of the learned Sub-Divisional Judicial Magistrate, Sundargarh. Accordingly, the Appellant (accused) has been sentenced to undergo imprisonment for life for commission of offence under section 302 of the IPC; and rigorous imprisonment for five (5) years and pay fine of Rs.5,000/- (Rupees Five Thousand) in default to undergo rigorous imprisonment for a further period of six months for commission of offence under section 201 of the IPC with the stipulation that the substantive sentences shall run concurrently. 2. Prosecution Case:- Accused-Suresh Dandsena had some illicit affairs with a lady 'X' of his village. One Basant Kalo informed the brother of that 'X' regarding the said affair. So, 'X' was scolded and warned by her brother. When it came to be known that Basant had passed on the information about the said affair of 'X' with the accused-Suresh, accused-Suresh with another namely Premananda (since acquitted) who happens to be his cousin brother went to the house of Basant. But then they found Basant to be absent in the house. So, they threatened Basant7s wife that unless Basant would refrain from interfering in the personal affairs of accused-Suresh, he would face dire consequences. Both accused Suresh and that Premananda had also so threatened Basant in the village. In the evening of 02.11.2003, which was 3/4 days after the said threat, Basant had gone to Pandripani Nala near his village in order to catch fish by using Churia. When he left the house, he had instructed his wife that after coming from Nala, they would store the paddy crops. Basant however did not return during that night. His wife remained under the impression that Basant might have gone near his other wife and therefore, did not go for search. Basant did not return on the next day even by 11 am. This gave rise to a suspicion in the mind of the wife of Basant about some foul play and her suspicion was directed against the accused persons since few days before they had threatened Basant with dire consequences. Basant did not return on the next day even by 11 am. This gave rise to a suspicion in the mind of the wife of Basant about some foul play and her suspicion was directed against the accused persons since few days before they had threatened Basant with dire consequences. When the wife of Basant was going towards the Nala in search of her husband, she met one Gopal Choudhury who is the one of the brothers of that lady 'X'. She then divulged before him that Basant had not returned from Nala where he had gone on 02.11.2003. Gopal Choudhury volunteered to accompany wife of Basant. Accordingly, both went to the Nala. They found the Churia and also budia (axe) and a pair of slippers belonging to Basant. Fallowing a dragging mark, when they proceeded towards south, there one place, they found Basant lying dead in a ditch, in a pool of blood with injuries over his head and neck. Wife of Basant then came back to the village with Gopal. Villagers were informed who then came and saw the dead body. Wife of Basant namely, Malli, Kalo, (Informant-P.W.3), thus raising suspicion against this accused and that Paramananda as to their involvement in causing murder of Basant, orally reported the matter before the Officer-In-Charge (OIC) of Lephripara Police Station. The OIC (P.W.9) reduced the same into writing and read over and explained the contents of the same to the Informant (P.W.3), who then put her thumb impression. The same being treated as F.I.R., (Ext.3) the investigation commenced after registration of the case. 3. In course of investigation, the Investigating Officer (I.O.-P.W.9) examined the Informant (P.W.3) and other witnesses. Having visited the spot being accompanied by the village Choukidar and one Constable, the I.O. (P.W.9) prepared the spot map (Ext.5). He recovered one pair of slippers, one budia (axe) and one Churia at the place of occurrence and seized the same under seizure list (Ext.4). The I.O. (P.W.9) collected sample earth and blood-stained earth from the spot where the dead body was lying and those were seized under seizure list (Ext.7). He held inquest over the dead body of the deceased and prepared the report (Ext.8) in presence of the witnesses. The dead body of the deceased was sent to the District Headquarter Hospital, Sundargarh for postmortem examination by issuing necessary requisition. He held inquest over the dead body of the deceased and prepared the report (Ext.8) in presence of the witnesses. The dead body of the deceased was sent to the District Headquarter Hospital, Sundargarh for postmortem examination by issuing necessary requisition. The I.O. (P.W.9) after collection of all those materials, arrested the accused. The incriminating articles seized from the spot were sent for chemical examination through Court. The wearing apparels of the accused-Suresh have been seized under seizure lists. The wearing apparels of the deceased were also seized on production by one Constable, A.C. Patel and prepared seizure list Ext.2 was prepared. The postmortem examination report of the dead body of the deceased was received. On transfer of the I.O. (P.W.9), he handed over the charge of investigation to his successor in office, who, on completion of investigation, submitted the Final Form placing the accused persons, Suresh Dandsena and one Premananda Dandsena, to face the trial for commission of offence under section-302/201/34 of the IPC. 4. Learned S.D.J.M., Sundargarh, having received the Final Form, took cognizance of the above offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing charge for the said offences against the accused persons. 5. In the Trial, the prosecution in total has examined twelve (12) witnesses. Out of them, as already stated, the informant, who is the wife of the deceased and had lodged the FIR (Ext.3) is P.W.3. P.W.1 is the Police Constable of Lephripada P.S., who accompanied the Officer-In-Charge of the P.S.(P.W.9) to village Pandrupani after receipt of the report regarding the murder. P.W.2 is also a Police Constable and witness to the seizure of the wearing apparels of the deceased. P.W.4, and P.W.8 are the covillagers of the Informant (P.W.3) and the accused, who accompanied the Informant (P.W.3) in searching of her husband, P.W.5 is also a co-villager of the Informant (P.W.3) and elder brother of P.W.4, P.W.6 is the sister of P.Ws. 4 and 5, P.W. 7 is the Ward Member of Ward No.2 of Gambharidihi Grama Panchayat, whereas P.W. 10 is first wife of the deceased. The I.O. has been examined as P.W.9 whereas the Doctor, who had conducted the autopsy over the deceased, has come to the witness box at the end as P.W.12. 4 and 5, P.W. 7 is the Ward Member of Ward No.2 of Gambharidihi Grama Panchayat, whereas P.W. 10 is first wife of the deceased. The I.O. has been examined as P.W.9 whereas the Doctor, who had conducted the autopsy over the deceased, has come to the witness box at the end as P.W.12. The prosecution besides leading the evidence by examining the above witnesses has proved several documents which have been admitted in evidence and marked Ext.1 to Ext.20. Out of those, important are the F.I.R. (Ext.3), spot map (Ext.5) inquest report (Ext.8), and postmortem report (Ext.20). The Chemical Examiner's report had been admitted in evidence and marked Ext.19. 6. The accused has not led any evidence in support of his plea of complete denial and false implication. 7. The Trial Court upon examination of the evidence of the prosecution witnesses and on going through the documents admitted in evidence, upon their analysis at its level has held that the prosecution to have proved the charges against the accused beyond reasonable doubt. Accordingly, the accused has been convicted for committing the offences under section-302/201 of the IPC and sentenced as aforestated. Whereas Premananda Dandsena who faced the trial as the accused with this accused has been acquitted of the charges under section 302/201 of the IPC. 8. Learned Counsel for the Appellant (accused) submitted that there is no direct evidence to connect the accused with the crime and the prosecution case is resting upon the circumstantial evidence. He submitted that the Trial Court without even a single strong circumstance much less to say that chain of circumstances has erred in holding this accused guilty of commission of the offences of murder of Basant in convicting him for the offence under section-302/201 of the IPC while acquitting the other accused-Premananda. He further submitted that simply relying upon the evidence of P.W.1, that this accused had given threat to the deceased 3/4 days prior to the occurrence and that in the wearing apparels of this accused, bloodstains of human origin have been detected, when those two circumstances even if taken for a moment to have been proved, together do not complete the chain of evidence in every respect to arrive at the finding that it is the accused who is guilty of commission of offence of the murder of Basant. The Trial Court has thus erroneously convicted this accused for commission of offence under section-302/201 of the IPC. He submitted that when the recovery of axe pursuant to the statement of this accused while in police custody has not been established beyond reasonable doubt as P.Ws. 7 and 8, two independent witnesses on that score have not supported the prosecution case and thus evidence of the I.O. (P.W.9) to that effect is highly unbelievable, the judgment of conviction cannot be sustained. 9. Learned Counsel for the Respondent-State supporting the finding of guilt as has been rendered by the Trial Court submitted that the Trial Court has rightly held the circumstances such as motive, detection of the blood stain of the human origin on the Lungi and T-Shirt of the accused and the evidence as to the recovery of axe as has been proved by the I.O. (P.W.9), to be enough for the purpose and no fault can be found with the same. 10. Keeping in view the submissions made; we have carefully read the judgment of conviction. We have also extensively travelled through the depositions of all the witnesses i.e. P.W.l to P.W.12 and have perused the documents which have been marked Exts.l to 20. 11. The dead body of Basant having finally been recovered at the instance of the I.O. (P.W.9), the Doctor (P.W.12) has conducted postmortem examination over the same. It is his evidence that he had detected several incised wounds on the neck of the deceased and also incised wound on the frontal region of the scalp. It is also her evidence that the left ulna bone on the wrist was fractured. All these injuries have been found to be antemortem in nature and he has stated that such injuries were possible on account of blow by heavy sharp cutting weapon, except the injuries on the scalp which was possible by lathi. Having examining the dead body of the deceased which was then in a decomposed state, she has noted above findings in his report, Ext.20. She had the occasion to examine the lathi and axe seized by the I.O.(P.W.9) in course of investigation. Her opinion is to the effect that using such lathi, the injuries on the head was possible so also the incised wound on the neck was possible by that axe. She had the occasion to examine the lathi and axe seized by the I.O.(P.W.9) in course of investigation. Her opinion is to the effect that using such lathi, the injuries on the head was possible so also the incised wound on the neck was possible by that axe. It appears that her evidence especially as to the nature of death has not at all been challenged. Besides the above, we find the evidence of the I.O. (P.W.9) who had seen the dead body that the injuries over the body and also the evidence of other witnesses including the wife of the deceased (P.W.3) and that of P.W.l, who had accompanied the I.O. (P.W.9) as well as the evidence of P.W.4, who had accompanied P.W.3 to the spot as regards the injuries to have been found on the dead body of Basant. The wife of the deceased P.W.3 who is the informant has stated about the previous incident wherein the accused and the other one who has been acquitted had threatened her husband (Basant) with dire consequences. But then it was 3/4 days before Basant left home and as per the evidence of P.W.3 Basant had gone to the Nala for catching fish. No evidence is forthcoming anybody has seen this accused with Basant at any point of time when he proceeded from the house to Nala or at any point on the way or even near that Nala. None has also stated that the accused then was seen roaming somewhere near that Nala when Basant was engaged in catching fish or was preparing to do so or even when he was there near the Nala. This P.W.3 states to have not reported the matter about the threat that had been given by the accused to her husband before the Police nor to have convened any meeting in the village on that account. Even accepting the evidence of P.W.3 that this accused and another had threatened the deceased; the time gap between an alleged threat and occurrence obviates the foundation of motive. Neither P.W.3 nor P.W.4 are stating that having arrived near the spot and seeing the dead body, they had seen the accused nearby or even on their way to Nala. P.W.3, P.W.4 and deceased Basant are the co-villagers of the accused. Neither P.W.3 nor P.W.4 are stating that having arrived near the spot and seeing the dead body, they had seen the accused nearby or even on their way to Nala. P.W.3, P.W.4 and deceased Basant are the co-villagers of the accused. When P.W. 3 states that she suspected the role of this accused in causing the murder of her husband, she is not stating then to have gone to ascertain the whereabout of this accused either before proceeding to the Nala or even after detecting the dead body near the Nala. P.W.4 who had accompanied P.W.3 is also not stating anything in that light. No doubt the prosecution has proved that the seized wearing apparels i.e. Lungi and T-Shirt of the accused were found to have been containing blood of human origin, but then no further evidence is laid that it was matching the blood group with the deceased and not matching the blood group of the accused. In that situation, in our considered view, with the above discussed evidence of the prosecution witnesses that item of evidence cannot stand as the incriminating circumstance against the accused. The recovery of the axe at the instance of the accused, when is said to have been made pursuant to the statement of the accused while in police custody, the independent witnesses examined from the side of the prosecution to prove the same have not supported the case of the prosecution. Although they have admitted their signatures in the seizure list that by itself is not enough to say that the prosecution has proved thereby that the accused giving his statement before the I.O.(P.W.9) had taken the I.O. (P.W.9) and these witnesses to the place in giving recovery of that axe. Furthermore, when P.Ws.3 and 4 state that one budia was lying near the dead body and that has been seen by them and was in fact brought by P.W.3. In view of the same, the prosecution version as regards such recovery of budia at the instance of the accused cannot be believed. On a conspectus of discussion of evidence as hereinabove, we are of the view that the prosecution has failed to establish the charge against the accused person beyond reasonable doubt. 12. In the result, the Appeal stands allowed. On a conspectus of discussion of evidence as hereinabove, we are of the view that the prosecution has failed to establish the charge against the accused person beyond reasonable doubt. 12. In the result, the Appeal stands allowed. The judgment of conviction and order of sentence dated 7th July 2005 passed by the IInd Adhoc Additional Sessions Judge, Sundargarh in Sessions Trial No.200/27 of 2004-2005 are hereby set aside. Since, the Appellant, namely, Suresh Dandsena is on bail, his bail bonds shall stand discharged.